After the abrogation article 370, I am getting frequent calls from RTI applicants that Government officials are not providing them information under RTI Act. It is alleged that Government officials are misleading citizens saying RTI law has gone along with article 370 from J&K. Some uninformed people have started accepting this narrative and it is mainly due to lack of legal knowledge among citizens. Even the educated people take this as gospel truth. As I have said there are many problems and challenges vis a vis implementation of Central RTI Act 2005 in Union Territory of J&K post 370 abrogation, but that doesn't mean that after J&K's own RTI Act of 2009 got repealed post article 370 abrogation, people of Jammu & Kashmir or even Ladakh cannot seek information from the Government ?
After October 31st 2019 , RTI Act 2005 (Central law) is applicable in J&K and Ladakh and Government officials must stop misleading people and should continue to provide information to people.
Ajay Kumar's struggle
Initially I didn't believe that Government officials would be confusing citizens by saying RTI Act has gone along-with article 370, but when I saw an official letter of J&K Public Service Commission (PSC) telling an information seeker from Rajouri that JK RTI Act 2009 has been repealed and thus he could not be provided the information, I was shocked.
Ajay Kumar a resident of village Keri Manyallan P/O Doongi Brahamana district Rajouri did his Post Graduation in Geography from Jammu University in 2012. In 2014 he qualified UGC –NET as well. Pertinently Keri Manyallan is a remote village in Rajouri district of Jammu which is located on Line of Actual Control (LoC). The residents of this village have suffered a lot in past and continue to suffer due to cross border shelling. In-spite of all these challenges Ajay Kumar completed his Post Graduation with good merit. He also falls under the category of resident of Actual Line of Control (ALC) for which Government has reserved jobs in various Government departments.
In 2017 Ajay Kumar applied for the post of Assistant Professor Geography vide PSC's notification number 10-PSC (DR-P) of 2017 Dated : 27.102017. There was one post of Assistant Professor Geography in Higher Education Department reserved for candidates belonging to ALC. Due to official apathy of PSC officials a non ALC candidate was shortlisted and called for interview at PSC's Jammu office along with two other ALC candidates. This female candidate from Baramulla district was finally not allowed to appear for the interview at the last moment on 6.11.2019 when Ajay Kumar raised his voice and sought some information using RTI as well.
Ajay Kumar who was supposed to be interviewed along with two other candidates was also not allowed while as two other candidates namely Mohammad Qasim Mir and Ravinder Singh were interviewed which is against the business rules of PSC.
Ajay's RTI application
When the Non ALC female candidate from Baramulla had been shortlisted for interview aggrieved Ajay Kumar had filed an application under RTI Act before JKPSC on 2.11.2019. He sought following information :
While responding to Ajay's RTI application PSC in its reply to question number 1 said no such document was available with them. How is it possible that these details are not available with the PSC ? In response to question number 2 the PSC said it was the 3rd party information and hence could not be revealed. The realty on the other hand is that PSC has always tried to suppress information under this 3rd party provision and inspite of being lambasted by JK State Information Commission (SIC) in past. JKPSC continues to use this legal provision illegally. There are numerous orders of Central Information Commission (CIC) and various State Information Commission's including JK State Information Commission –SIC (now not in operation) which clearly says that such a kind of information is not a 3rd party information. Other questions 3 to 6 were also not answered
SIC's orders against PSC Former State Chief Information Commissioner (CIC) , Khurshid Ahmad Ganai disposed off several appeals wherein J&K Public Service Commission (PSC) was directed to provide information under RTI Act and not to take refuge under the garb of 3rd party information ? In-fact the first case decided by Mr Ganai soon after taking over as State CIC titled Narendra Pal Singh v/s JK PSC was against PSC. In another case the then CIC Khurshid Ahmad Ganai on May 16th 2017 issued penalty show cause notice against the PIO of J&K Public Service Commission (PSC) in the case titled Iram Fayaz v/s J&K Public Service Commission . The 2nd appeal came up for hearing before the then CIC Khurshid Ganai on 16.05.2017 at Srinagar. Ishtiyaq Ahmed, the then PIO, J&K PSC and the appellant Iram Fayaz attended the hearing . The appellant submitted during the hearing that the PIO has not furnished her the full information about a selected candidate for the post of Assistant Professor in Higher Education (Industrial Chemistry). The PIO submitted that whole information except 'third party' information was provided to the appellant, however, late by few days (08) days. CIC after hearing the case issued following order against the Public Service Commission (PSC) which reads as : "Although, during the proceedings before the Commission, the PIO referred to Section 11 relating to 'third party' information but no record has been provided to show that 'third party' proceedings were initiated in this case by him or that Section (11) was at all applicable in this case. No authority or judgment was quoted in support of applicability of third party information in this particular case of selection. The FAA has also not made any mention of third party proceedings either at the level of 1st appeal or at the time of proceedings with the PIO. For these reasons i.e, failure to dispose of the RTI application in terms of Section 7(1) which lays down specified time period of 30 days for disposal by the PIO and on the grounds of delay, the PIO is fit to be proceeded under Section 17 of the Act".
Pertinently under section 17 of J&K RTI Act 2009 , penalty proceedings are initiated against the erring Public Information Officers (PIO). In past it has been made clear that seeking information of fellow candidates does not amount to 3rd party information and if PSC continues to use this provision again and again, the PIO must be penalized by the Information Commission. Ajay Kumar has now to take up the case with Central Information Commission (CIC).
RTI application returned
With an aim of getting justice Ajay Kumar filed 1st appeal in PSC but that was never disposed off. Ajay Kumar filed a fresh RTI application on 27.12.2019 seeking certified copies of the comments made in writing by Secretary PSC Rajesh Sharma and Deputy Secretary Nasir Ali vis a vis his case. Pertinently both these officers had strongly recommended that Ajay Kumar be interviewed under ALC category but the Chairman's office had set aside the said recommendations. Why cannot these papers be provided to Ajay Kumar ? To again hide these official notes & to suppress the information the Public Information Officer (PIO) of JK PSC vide letter No: PSC/DR/RTI/80/2019 Dated 06.01.2020 denied to share the information saying JK RTI Act 2009 had been repealed. Instead of providing information under new law (RTI Act 2005) or asking the information seeker to file a fresh application, the PIO so casually returned RTI application to Ajay Kumar via speed post along with Rs 10 postal order (application fees).
If JK RTI Act 2009 has been repealed that doesn't mean that after article 370 abrogation people of Jammu & Kashmir and Ladakh will have no access to information? JK RTI Act 2009 was definitely much progressive law than RTI Act 2005 , but information is to be provided under RTI Act 2005 as well (central RTI law). Can PSC's Chairman or Secretary answer these queries :
I wish J&K RTI Act 2009 was not repealed like 166 other J&K laws that are still in operation post article 370 abrogation. If JK Public Services Guarantee Act 2011 (PSGA) was not repealed and is still a protected legislation what was the need to repeal JK RTI Act 2009 ? On one hand Government claims that after 370 abrogation people have got a sigh of relief , there is good governance and corruption has come down. The result is before us.
People like Ajay Kumar would not have to suffer at the hands of officials posted in JKPSC. RTI applications are returned back. I appeal J&K Government to take a strong notice of this messy state of affairs…..
Dr Raja Muzaffar Bhat is Srinagar based Columnist and activist. He is Founder & Chairman of J&K RTI Movement and is an Acumen India fellow as well.
Views are personal only.